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Originally published in NAVEX Global’s Top 10 Risk & Compliance Trends for 2021 eBook. You can download the full eBook here.

COVID-19 introduced a bevy of changes to the workforce – from increased use of video communications technology to widespread remote work. Across industries and company structures, the virus forced employees to work from home. As they begin to return to the office in 2021, employers will each have to tailor their own best strategy for safely transitioning back. How they proceed may prove vital to their success in the current shifting market.

In 2021, we expect businesses across industries to make long-term changes to their remote work polices and in-office practices to meet employee needs and expectations, and support recruitment and retention efforts. These changes will have lasting impacts on the very nature of work and on employer-employee relations.

Manage a Strategic Return to Work

Much has been said about the hazard assessments that OSHA and the CDC recommend employers conduct for a safe return. Employers should make these assessments and implement changes accordingly, which may involve improving air filtration systems, providing masks and cleaning equipment to employees, and installing temperature checkpoints.

But thoughtful, strategic businesses should also consider other factors for a win-win return for both employer and employee: Should they restructure the office to address the safety concerns of returning? How has COVID affected their employees’ mental health? Should they require employees to get a COVID vaccine?

And perhaps the biggest question: Should employers call for a return to the office at all?

Download: Coronavirus Comeback Kit: A Risk & Compliance Buyer’s Guide

It is already apparent that one trend post-COVID will be a large-scale shift to remote work. Several noteworthy companies have already announced a permanent remote work plan going forward. In industries where this approach is widely adopted and employee-favored, flexibility will be much more important to recruit and retain top talent after COVID.

In 2021, businesses will grapple with hard decisions: Whether to require employees to be vaccinated, how to deal with new mental health issues … and whether to return to the office at all.

Because 77% of the workforce has indicated a preference for continuing to work from home at least part of every week, employers in every industry must decide how to best address both company and employee needs. To do this effectively, employers should weigh their particular in-office efficiencies against the potential retention of employees with new bargaining power to demand flexibility. They should also account for some employees with COVID-related anxiety not being comfortable returning to the office.

Employers will need to get ahead of these issues. They may find that the market has shifted, and their employees’ expectations with it.

Steps for Organizations to Take

1. Assess How Successful Work-From-Home Has Been for Your Company

Do you truly need your employees to return to the office? This analysis will depend on the specific needs of your company. For some, it may be necessary to adopt a flexible policy to recruit and retain top talent. This is especially true for roles that work well remotely and may expect remote work as the new norm. For others to work optimally, a physical return may be necessary.

To determine whether your company will benefit from a long-term change in work-from-home policy, evaluate employee productivity while working from home. Poll workers about their preferences to assess the risk of losing talent if you implement a strict return-to-work policy. Some may be craving a return to the office and human contact, while others may fear it.

If your business did not suffer from remote work, you will likely be able to continue working remotely or increase flexible work options for your workers without significant sacrifice. Most companies have already upgraded their technological capabilities for the months-long remote work that COVID has required. If your company has already integrated advanced technology or otherwise invested in remote work functionality, its use and value are worth noting.

2. Address Employees’ Mental Health Needs

Employers should already be addressing your employees’ mental health concerns, COVID-related and otherwise, you must also prepare to implement new support strategies when your employees return to the office.

COVID forced the majority of the workforce into many months of isolation. The lack of regular human interaction, coupled with fears of loss and infected loved ones, have necessarily taken a toll on many employees’ mental health. Your employees may be struggling to cope beyond what is visible in a video conference or phone call.

Some employees may crave a return to normalcy and human interaction, while others may have significant social anxiety related to relearning the social dynamics of the workplace after so long in isolation. Still others may have developed depression from the lack of human contact and worry for their loved ones.

To support your people and foster a supportive, productive environment, decide how best to address their concerns and discomforts about returning to work. For example, this could mean allowing flexibility, offering your employees mental health support systems such as counseling or mindfulness trainings, or attempting to foster a nonjudgmental, inclusive environment. Decide which approaches will most benefit your employees and company, and start implementing them now.

3. Consider How to Change the Physical Space

With many employers requiring fewer in-office fulltime workers, large office spaces will no longer be the norm, and commercial real estate prices may drop. Whether you downsize or reconfigure your current space, consider: What should the office space of the future look like?

In a post-COVID world, offices big and small will be revamped for safety. The open floor plan office design was already long in the tooth (and unpopular among employees), and COVID will likely hammer the final nail in its coffin. Gone are the days of employee bullpens and stuffy cubicles. Instead, employees will likely expect more private or isolated offices. Although employees often enjoy open and edgy common areas, they may be reluctant to continue using such areas for fear of infection.

However you proceed, weigh the benefits of safety measures against the negative impact minimizing human contact could have on the culture. Human interaction and collaboration are key reasons to require in-office work, and employers should take measures to keep these benefits intact.

4. Decide Whether to Require a Vaccine

With the desperate desire for a cure for the virus and its attendant disruptions to our lives, employers who want their employees to return to the office face a new question: Should they require their employees to get the vaccine before returning?

The Equal Employment Opportunity Commission announced in its December 16, 2020 guidance that an employer may exclude an employee from the office if that employee refuses to get vaccinated because of a disability or sincerely held religious belief for which there is no reasonable accommodation possible.

This guidance may first appear to lend credibility to employers’ requiring the vaccine, but it does not completely shield employers from risk. Employers still may not take any adverse action against an unvaccinated employee unless that employee poses a direct threat to the health and safety of the office and no reasonable accommodations, such as wearing a mask or social distancing, is possible.

In our current era, it’s going to be hard to argue that continued, paid work-from-home is not a reasonable accommodation, when the employee at issue or other similar employees have already been working from home successfully.

It may be tempting to allay some employees’ safety concerns by requiring a vaccine, but employers should carefully consider the risks before doing this; significant safety, morale, and legal concerns caution against requiring vaccines. The initial vaccine trials have been encouraging, but in this early stage, we cannot yet be sure of their long-term effects. These were the first licensed mRNA vaccines in the United States. Employers should hesitate to require their employees to take that risk.

Employers may face legal risks from mandating vaccines. Employees with religious or ADA objections could allege discrimination if their employers do not provide them reasonable accommodations, or at least attempt to, before excluding them from the office. Further, the federal EEOC guidance does not affect state law, so it does not immunize employers from potential state tort and discrimination litigation down the road for requiring vaccines. Absent clear rules establishing no liability for requiring employee vaccines, there will be litigation about it. Although the EEOC says employers may mandate the vaccine, employers still must consider ADA and religious accommodations, as well as state tort, privacy, and discrimination laws.

The best practice will be to let employees choose. This will ensure fair treatment and avoid a potential new wave of litigation down the road.